Maritime piracy off the coast of Somalia continues to spiral into an increasingly threatening international crisis, with attacks in the Gulf of Aden increasing during the first half of 2011. While more states have been prosecuting pirates in their national courts during the last year, United Nations officials have indicated that as many as 90% of pirates captured by national navies are subsequently released due to complicated legal and financial burdens associated with prosecution. In the search for solutions to the current maritime piracy problem, international legal initiatives addressing civil aviation security may offer insight

A global trend of airline hijackings beginning in the late 1960s and culminating in the terrorist attacks of September 11, 2001, catalyzed various initiatives that have improved the efficacy of aviation security. The international legal regime governing civil aviation security developed through various international treaties, conventions, agreements, and declarations and resolutions from important international institutions. In particular, international agreements embodying the legal maxim aut dedere aut judicare—the obligation of states to prosecute or extradite the accused—are an important component of the international aviation security regime. The United States, as the world’s largest aviation market, has also contributed to the international civil aviation security regime through its domestic legislation. At various times in the modern era, the United States has used economic leverage to propel compliance with its domestic security standards monitored by Federal Aviation Administration security audits by barring non-complying states from access to its airports.

This broad legal framework offers a valuable example of cooperation and collaboration between various stakeholders to address a trend in international crime. While there are limitations that must be considered in drawing an analogy between airline hijackings and maritime piracy due to contextual and legal distinctions, there are significant similarities conducive to legal comparison.

Borrowing from Civil Aviation

In particular, the elimination of safe havens for airline hijackers appears to be an effective deterring factor that may inform initiatives relevant to maritime piracy. In aviation security, prosecute-or-extradite approaches have made a discernible impact on deterring hijackings. For example, much of the airline hijacking crisis in the United States during the 1960s and 1970s was driven by Cold War-era motivations involving Cuban political refugees seeking a safe haven in the United States or Cuba (depending on their political orientation). In 1973, the United States and Cuba exchanged diplomatic notes constituting a Memorandum of Understanding that neither country would serve as a safe haven for hijackers. Following this agreement, the number of attempted hijackings of aircraft in the United States dropped significantly from 25 hijackings per year prior to the agreement to only one the following year. This remarkable change suggests that the existence of a sanctuary nation for hijackers enabled the Cuban hijacking problem.

Similar extradite-or-prosecute provisions exist in the international legal regime governing maritime piracy, yet these provisions have not been matched with international compliance. Being unable to rely on Somalia to prosecute pirates within its borders, the international community must, at least temporarily, seek to deter and eliminate safe havens through prosecution outside the current Somali judicial system. The enforcement of international agreements with provisions obliging states to prosecute piracy suspects or extradite them to another state willing to prosecute is a vital part of the solution. To ensure compliance, the international community or the United States should consider coercive mechanisms such as those used in civil aviation security to drive compliance with these important international agreements.

Initiatives that mirror airport security measures designed to deter infiltration of the security infrastructure at airports may also offer anti-piracy solutions. While increased port security may be less effective than its airport counterpart, ports may serve as checkpoints to determine whether ships are outfitted to implement piracy-deterring strategies, such as internationally recognized Best Management Practices (BMPs). Currently, it is believed that shipping companies do not always employ BMPs as suggested by maritime security experts. As ships remain vulnerable to piratical acts and attacks continue to be successful, the piracy problem is perpetuated.

Economic sanctions that have been used to fight airline terrorism may also being used to target financers of piracy crimes. Such measures have already be implemented to some degree on the domestic level through the United States Department of Treasury Office of Foreign Assets Control, which administers and enforces economic and trade sanctions based on foreign policy and national security goals. An Executive Order issued by President Obama on April 12, 2010, authorized sanctions on “those who engage in or support acts of piracy off Somalia’s coast, including those who provide weapons, communication devices, or small boats and other equipment to pirates.” While this approach is encouraging, sanctions may have limited effect because pirates often operate with liquid assets.

Communication between various stakeholders affected by the piracy crisis may also be informed by the international airline security regime. Some commentators have suggested that the International Civil Aviation Organization (ICAO) and its role in air transportation could serve as a model for security cooperation that could translate in the maritime commons through existing bodies such as the International Maritime Organization. In particular, ICAO’s success may serve as a model for an international agency to support an enhanced global framework for international maritime situational awareness and security cooperation.

Any solution to effectively address the maritime piracy crises off the coast of Somalia must be comprehensive. While port security to ensure compliance with BMPs, economic sanctions targeted at piracy financers, and enhanced communication among stakeholders are important considerations, the problem of piracy is unlikely to be eradicated while national navies continue to catch and release piracy suspects. Civil aviation security law provides an applicable example of the international community’s capacity to enforce prosecution or extradition of terrorists and hijackers. Anti-piracy stakeholders, including national governments, the shipping industry, and international organizations tasked with ensuring international peace and security, should consider these successes in limiting airline hijackings through legal accountability as they work together to reign in piracy in the Gulf of Aden.

2 Responses to “Maritime Piracy: Borrowing from Civil Aviation”

Since maritime piracy violates a peremptory norm of international law, I wonder what role international tribunals could play in controlling piracy. An international naval task force is already operating on the Gulf of Aden, so when pirates are captured, they could be sent to an international tribunal. Perhaps the International Criminal Court or an ad hoc Tribunal for Piracy could hear piracy prosecutions. This would seem to address the jurisdictional concerns. Although, the cost of establishing a new tribunal or referring cases to the ICC would make this somewhat impractical given the large number of “small time” pirates.

Cost is a major problem for the international tribunals. That said, the ICTR (International Criminal Tribunal for Rwanda) is expected to wrap things up in the next couple of years and the facilities in Tanzania used for those proceedings could potentially house an internationalized piracy tribunal in the region which could consequently cut costs. The Secretary General report that came out in July discussed this to some degree. See here: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N11/358/22/PDF/N1135822.pdf?OpenElement